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Not in the Name of Gender Justice: Reflections on Uttarakhand's UCC

The provisions of the Bill ignore constitutional guarantees of fundamental rights, judicial developments, people’s movements and concerns, and public discourse in India and elsewhere.

The much touted, much awaited Uttarakhand Bill on the Uniform Civil Code (UCC) has been passed. It seeks to unify family laws, spanning issues of marriage and divorce and their registration, restitution of conjugal rights and judicial separation, nullity of marriage and divorce, maintenance, alimony and custody, intestate and testamentary succession, and live-in relationships. Adoption, guardianship and surrogacy are conspicuous by their absence. In the past decades, the UCC has been projected as a tool to achieve nari shakti (empowerment of women) and gender justice was seen to be the goal, by equating uniformity with equality. This claim will be examined in this article.

An underlying presumption in family law is that marriages and intimate relationships are consensual, that they protect the constitutionally guaranteed fundamental rights and dignity of the parties concerned, and that the agency and decisional autonomy exercised by the concerned parties are acknowledged and protected. However, some provisions of the Bill are a cause of grave concern as they violate this fundamental principle. Three such provisions are highlighted and analysed below.

Registration of marriages, divorces and live-in relationships

The Bill, through clause 6, makes it mandatory for marriages to be registered subsequent to the commencement of the Code, if the marriage takes place in Uttarakhand or one of the parties is a resident of the state. Clause 7 makes it mandatory for marriages performed from 2010 (when the Uttarakhand Compulsory Registration of Marriage Act was enacted) to the commencement of this Code, to be registered, unless it has already been registered under the 2010 Act. Even when claims of curtailing child marriage and bigamy have been made in the past, the women’s movement in India has been reluctant to support mandatory registration of marriages, as the penal sanction and civil consequences attached to a failure to register, would disproportionately impact women. This is more so due to lower awareness of rights and law among them, and the power differentials between the spouses. Placing the onus of registration on women, many of whom are poor and illiterate, with no corresponding legal mandate of the state to create awareness of the same, seems unfair and unjust.

Similarly, registration of decrees of divorce and nullity passed after and before the commencement of the Code are also to be mandatorily registered, as per clauses 8 and 9 respectively. Since these are passed by courts (both within Uttarakhand and outside Uttarakhand with at least one party as a resident of the state), there could be a mechanism created that links the Registry with the courts, particularly as most courts are being digitised through the Union government’s initiative, rather than placing the onus on the individuals concerned.

While non-registration will not affect the validity of a marriage, as per clause 20, failure to register marriage, decrees of nullity and divorce would result in penal consequences – fine of up to Rs 25,000, as per clause 18(2). This is indeed very steep. One cannot imagine the predicament of poor and illiterate women who would be compelled to navigate administrative mechanisms for registration, and face the penal consequences upon their failure to do so.

The registers of marriage, nullity and divorce are open for public inspection, as per clause 15. In a country (and state) with rampant honour crimes, and parents’ and communities’ resistance to inter-caste, inter-religious and inter-class marriages, such public inspection is likely to exacerbate the situation of vulnerability of adult women in choice marriages without parental approval, and make them target of attacks. Public inspection of such registers would facilitate moral policing and tighten the stranglehold of the natal family on young women who exercise choice and autonomy in marriage.

The Bill also mandates persons in live-in relationships within the state, irrespective of whether or not they are residents of the state, to submit a statement of live-in relationship to the concerned Registrar (clause 378). This provision is justified through the murder of young women by their partner in a live-in relationship in recent years, such as Shraddha Walkar, Nikki Yadav and Megha Thorvi. However, we need to pause and ask ourselves if this protectionist approach by a paternalistic state will truly empower women. Spotlight must be shone on the role of natal family in rejecting the woman’s choice of partner, thereby depriving her of a support system when the relationship turned violent.

Further, failure to submit the statement within a month of commencement of the live-in relationship, entails imprisonment of up to three months, fine of up to Rs 10,000 or both, as per clause 387(1). The disparity in the penal consequence between failure to register a marriage and failure to register a live-in relationship, with the latter entailing imprisonment in addition to fine, is glaring.

A statement is also required to be submitted to the Registrar upon termination of the live-in relationship, as per clause 384. Upon such a submission, if either of the parties is below 21 years of age, the Registrar is also mandated to inform the parents/guardians of the party regarding the same, as per clause 385(3). This infantilises individuals aged 18-21 years who engage in such relationships.

Cumulatively, the chapter on live-in relationships compels adults living in consensual relationships, who may have deliberately avoided marriage and its legal consequences, to get enmeshed in administrative processes, thereby facilitating state scrutiny over them. As in the case of choice marriages, in live-in relationships too, this enables surveillance, moral policing and harassment by the natal family, community and possibly, the state machinery.

The only benefits available to those who register their live-in relationships are – avoidance of penal consequences, the woman can claim maintenance from her partner (under clause 388), and a child born from such a registered live-in relationship would be treated as legitimate, on par with other children, and consequently enjoy all rights including maintenance and property rights through intestate succession. It is unclear as to how these provisions would intersect with other legislations such as the Protection of Women from Domestic Violence Act, 2005, which seek to protect, among other categories of women, those in relationship in the nature of marriage. For instance, if a woman fails to submit the mandated statement to the Registrar, whether she would be entitled to protection under the PWDVA is anyone’s guess.

In a democratic country, adults living together in a consensual relationship ought not to be subjected to state monitoring through mandatory administrative procedures, in the guise of protecting the woman in the relationship. While society may frown upon or disapprove such relationships, such social morality ought not to colour a law. Through several judgments, the courts have affirmed the right of persons over 18 years of age to choose their intimate partner/spouse, irrespective of caste, religious or other differences. These include Lata Singh v. State of U.P., Arumugam Servai v. State of Tamil Nadu, Shakti Vahini vs. Union of India and Shafin Jahan v. Asokan K.M. The provisions on compulsory registration of marriage, divorce, decree of nullity and commencement and termination of live-in relationships make a mockery out of such jurisprudence.

Retention of restitution of conjugal rights

The Bill has retained restitution of conjugal rights (RCR) as a matrimonial remedy at a time when its constitutional validity has been challenged in the Supreme Court. Clause 21 of the Bill is a copy paste of section 9 of the Hindu Marriage Act and section 22 of the Special Marriage Act. This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of cohabitation, consortium, companionship and conjugality. Though on the face of it, it is a gender neutral provision, it has disproportionate and adverse ramifications for the wife who may be subjected to rape and forcible pregnancy by the husband.

This provision violates the right to live with dignity, bodily integrity, sexual autonomy, privacy, decisional autonomy, agency and reproductive rights and health, which every woman, including married women, are entitled to. Such rights  have been upheld in various judgments. These include Justice Puttuswamy vs. Union of India (right to privacy), Navtej Singh Johar vs. Union of India (sexual autonomy), Laxmi Mandal v. Deen Dayal Harinagar Hospital & Ors. (access to reproductive health), Sandesh Bansal v. Union of India (state responsibility in protecting and protecting women’s reproductive health), and X vs. Principal Secretary – Health & Family Welfare Department (right of unmarried women and survivors of marital rape to terminate pregnancy).

Interestingly, in 1983, the Andhra Pradesh high court, in T. Sareetha vs. T. Venkata Subbiah, observed that “the origin of this uncivilised remedy in our ancient country is only recent and is wholly illegitimate” and further said: “the decree for restitution of conjugal rights makes the unwilling victim’s body a soulless and a joyless vehicle for bringing into existence another human being. In other words, pregnancy would be foisted on her by the state and against her will.” The T. Sareetha judgment, delivered close to a century after Rukhmabai judgment, interrogated the same issue which is relevant even at present – the role of the state in interfering with sexual autonomy and bodily integrity of a woman within the institution of marriage.

In a report released in 2015 by a government-appointed high level committee on the status of women, it recommended that provisions related to RCR that exist in various statutes should be deleted. It reasoned out that the provision is only being used to defeat wife’s claim for maintenance and served little purpose, and had no place in independent India. Likewise, the Law Commission of India, in its consultation paper on family law reforms, published in 2018, recommended its deletion from the statute books. The Uttarakhand Bill turned a blind eye to these recommendations, and is a missed opportunity for eliminating this regressive matrimonial remedy from the statute book, thereby promoting gender justice.

Non-recognition of rights of trans and queer persons

Clause 3(1)(j) of the Bill defines “person” as “an individual, whether male or female, and the expressions “he/she”, “his/her”, “her/him” and “herself/himself” shall be construed accordingly. The Bill is replete with references to son and daughter, husband and wife, brother and sister, completely excluding the transgender persons from the purview of the Bill and the rights and protections it may accord.  Alternatively, it compels them to adhere to their gender assigned at birth, which violates their constitutionally guaranteed rights.

The NALSA judgment of 2014 recognised the rights of transgender persons, and the Transgender Persons (Protection of Rights) Act 2019 provided statutory recognition of the same. In 2019, through the judgment of Arun Kumar vs. Inspector General of Registration, the Madras high court recognised a trans woman as “bride” within the purview of the Hindu Marriage Act. The right of transgender persons to have a valid heterosexual marriage was affirmed by the Supreme Court in 2023 in Supriyo vs. Union of India, popularly known as the marriage equality judgment. The Uttarakhand UCC Bill is oblivious to these legal developments.

This also implies that inheritance among hijra communities would continue to be governed by the guru-chhela parampara, which is judicially recognised through judgments such as Illiyas and Others vs. Badshah and Sweety vs. General Public by the Madhya Pradesh and Himachal Pradesh high courts respectively. Inheritance practices among other communities such as aravani, kothi, shiv shakti, jogappa and kinnar would also continue without being affected by the Bill.

The Bill does not include marriages among queer persons, as clause 4 of the Bill states that a marriage maybe solemnised between a man and a woman, after they fulfil the criteria laid down in the clause. Additionally, the Bill does not recognise live-in relationships among same sex couples, as clause 3(4)(b) defines a live-in relationship as “a relationship between a man and a woman…” Thus, only heterosexual relationships and marriages are recognised in this Bill.

In Supriyo, the majority judgment said that the State is duty-bound to ensure that there are no impediments for queer couples to enjoy the rights flowing from all previous judgments as well as the right to relationship as defined in this judgment. Chief Justice of India D.Y. Chandrachud mandated the legislature to enable these rights. The Uttarakhand legislature had the first opportunity to follow these directives, but it failed to do so, by completely ignoring the rights and concerns of queer and trans communities as if such communities do not exist.

Despite non-recognition of queer marriages in law, various courts have provided protection orders to queer couples whose families and communities opposed their relationship. For instance, in 2020, a Gujarat court reportedly provided protection to a lesbian couple who underwent police training together; the Delhi high court to a lesbian couple who fled from the state of Rajasthan to Delhi, fearing threat to their life, liberty and security from their parents; in 2021, the Madras high court reportedly directed parents of a lesbian couple to be sent for counselling because they threatened the couple; the Allahabad high court has provided protection to lesbian couples in more than one instance. The focus of the Bill on heterosexuality in marriage and live-in relationships flies in the face of such jurisprudential developments.

Additionally, the Bill ought to have addressed familial violence in the lives of queer and trans persons. Last year, a report of the findings of a closed door hearing on the issue was published, based on the testimony of 31 queer and trans persons from across India. It found that natal family violence is often normalised, ignored by the law and legal institutions, justified as “punitive” or “corrective” measures for perceived transgressions of gender and sexuality norms, and facilitates surveillance and control by the natal family in the name of protecting its “honour”. The Bill does great disservice to queer and trans persons in ignoring this ground reality.

The Bill sets no limit to the quantum of property that can be willed away in clause 61. Thus, a parent may completely disinherit their child based on the child’s gender identity or sexual orientation. In 2018, the Law Commission of India had recommended that, drawing from Muslim law, some portion of the property must be fixed by law for the dependants of the deceased under all family laws. This recommendation has been completely ignored in the Bill.

Conclusion

A cumulative analysis of the three set of provisions discussed above indicate that the Bill embeds and enforces heterosexuality in its provisions, ignores ramifications of these provisions on women (including queer and trans women) and reinforces natal family’s control over choice marriages and live-in relationships among adults. It criminalises adult consensual relationships that are not registered and infantilises them; simultaneously, it turns a blind eye to natal family’s violence on and imposition of their choice of partner on their children through forced marriages. Its protectionist approach in mandating registration of live-in relationships is hardly empowering for women; in fact, it exposes them to the wrath of the combined forces of family, community and state agencies and further disempowers them. As such, the claim that a UCC promotes gender justice is a hollow one.

The provisions of the Bill discussed above ignore constitutional guarantees of fundamental rights, judicial developments, people’s movements and concerns, and public discourse in India and elsewhere. It is a missed opportunity on the part of the State to enact a truly gender just, inclusive, progressive and equitable family law.  If this Bill is going to be the blueprint for a UCC to be enacted in other states and at the national level, further deliberations by a Standing Committee of the state legislature as well as through public discourse  are certainly warranted.

Dr. Saumya Uma is a Professor at Jindal Global Law School, O.P. Jindal Global University, and heads its Centre for Women’s Rights. She teaches, writes and speaks at the intersections of gender, human rights and the law. The opinions expressed in this article are her own.